KEMP v. COUNTY OF SUFFOLK

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Supreme Court, Appellate Division, Second Department, New York.

Richard KEMP, appellant, v. COUNTY OF SUFFOLK, et al., respondents.

Decided: April 28, 2009

WILLIAM F. MASTRO, J.P., MARK C. DILLON, JOHN M. LEVENTHAL, and CHERYL E. CHAMBERS, JJ. Frommer & Cerrato, LLP, Garden City, N.Y. (Mary Ellen O'Brien of counsel), for appellant. Christine Malafi, County Attorney, Hauppauge, N.Y. (Kelly Green of counsel), for respondents.

In an action, inter alia, to recover damages for assault and false arrest, the plaintiff appeals (1) from an order of the Supreme Court, Suffolk County (Pitts, J.), dated February 20, 2008, which granted the defendants' motion for summary judgment dismissing the complaint based on his failure to comply with General Municipal Law § 50-h, and (2), as limited by his brief, from so much of an order of the same court dated July 29, 2008, as, upon reargument, adhered to the original determination.

ORDERED that the appeal from the order dated February 20, 2008, is dismissed, as that order was superseded by the order dated July 29, 2008, made upon reargument;  and it is further,

ORDERED that the order dated July 29, 2008, is affirmed insofar as appealed from;  and it is further,

ORDERED that one bill of costs is awarded to the defendants.

 “A party who has failed to comply with a demand for examination pursuant to General Municipal Law § 50-h is precluded from commencing an action against a municipality” (Bernoudy v. County of Westchester, 40 A.D.3d 896, 837 N.Y.S.2d 187;  see Zapata v. County of Suffolk, 23 A.D.3d 553, 554, 806 N.Y.S.2d 597;  Patterson v. Ford, 255 A.D.2d 373, 679 N.Y.S.2d 706;  Heins v. Board of Trustees of Inc. Vil. of Greenport, 237 A.D.2d 570, 655 N.Y.S.2d 996).   Contrary to the plaintiff's contention, he failed to offer a sufficient reason, or allege any exceptional circumstances, to excuse his compliance with General Municipal Law § 50-h after a related criminal proceeding terminated (see Misek-Falkoff v. Metropolitan Tr. Auth. [MTA ], 44 A.D.3d 629, 843 N.Y.S.2d 155;  Zapata v. County of Suffolk, 23 A.D.3d at 554, 806 N.Y.S.2d 597;  Arcila v. Incorporated Vil. of Freeport, 231 A.D.2d 660, 661, 647 N.Y.S.2d 544;  cf. Twitty v. City of New York, 195 A.D.2d 354, 600 N.Y.S.2d 66).   Under the circumstances of this case, where the plaintiff invoked his Fifth Amendment privilege against self-incrimination at the hearing pursuant to General Municipal Law § 50-h, on January 7, 2005, the plaintiff, not the County defendants, was obligated to reschedule a continuation of the 50-h hearing after the criminal proceeding terminated two years later (see Misek-Falkoff v. Metropolitan Tr. Auth. [MTA ], 44 A.D.3d at 629, 843 N.Y.S.2d 155;  Zapata v. County of Suffolk, 23 A.D.3d at 554, 806 N.Y.S.2d 597;  Scalzo v. County of Suffolk, 306 A.D.2d 397, 397-398, 760 N.Y.S.2d 879;  Arcila v. Incorporated Vil. of Freeport, 231 A.D.2d at 661, 647 N.Y.S.2d 544;  Bailey v. New York City Health & Hosps. Corp., 191 A.D.2d 606, 191 A.D.2d 606;  Best v. New York, 97 A.D.2d 389, 468 N.Y.S.2d 7, affd. 61 N.Y.2d 847, 473 N.Y.S.2d 975, 462 N.E.2d 152).   Thus, the Supreme Court properly, upon reargument, adhered to its original determination granting the defendants' motion for summary judgment dismissing the complaint based on the plaintiff's failure to comply with General Municipal Law § 50-h.

The parties' remaining contentions are without merit or have been rendered academic.

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